Monday, July 7, 2008

The Fair Housing Act and Online Roommate Matching Service Collide in Cyberspace

The U.S. 9th Circuit Court of Appeals ("Court") considered the scope of immunity accorded to an online roommate matching service by the Communications Decency Act (“CDA”) in Fair Housing Council of San Fernando Valley v., LLC, May 15, 2007.

The Fair Housing Act (“FHA”) provides, among other things, that no one refuse to rent or sell housing based on race, color, national origin, religion, sex, familial status or handicap.

The Defendant, (“Roommate”), is an intermediary online service which connects roommates based on roommate preferences. Based on the FHA and state fair housing laws, the Plaintiffs, Fair Housing Councils of San Fernando Valley and San Diego (“the Councils”), filed suit in federal district court challenging Roommate’s practice that requires potential members of Roommate to respond to a series of online questionnaires by choosing from answers in drop-down and select-a-box menus. Users must disclose information about themselves and their roommate preferences based on such characteristics as age, sex and whether children will live in the household. They can then provide “Additional Comments” through an open-ended essay prompt.

Roommate’s free membership allows users to create personal profiles, search lists of compatible roommates and send “roommail” messages to other members. Roommate also sends email newsletters to members seeking housing, listing compatible members who have places to rent out. Roommate’s fee-based membership allows users to read their “roommail” and view the “Additional Comments” essays of other members.

As a defense, Roommate argued that it was immune from liability for what users of its service posted under the Communications Decency Act (“CDA”), which provides, “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c). Under the CDA, interactive content providers are immune from liability for content created by third-parties. The immunity applies to a defendant who is the “provider . . . of an interactive computer service” and is being sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 230(c).

Regarding the CDA's scope of immunity for Roommate's activites, the Court held as follows:
  • Roommate does not have immunity under the CDA for posting its questionnaires on its website and requiring individuals who want to take advantage of its services to complete them. Roommate is “responsible” for the questionnaires because it “creat[ed] or develop[ed]” the forms and answer choices. As a result, Roommate is a content provider of the questionnaires and does not qualify for CDA immunity for their publication.
  • Roommate does not have immunity under the CDA for posting and distributing by email its members’ profiles. The Court reasoned, “[b]y categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is ‘responsible’ at least ‘in part’ for creating or developing.”
  • Roommate has immunity under the CDA for posting the information its members provide on the “Additional Comments” form. The Court reasoned, “Roommate’s open-ended question suggests no particular information that is to be provided by members; Roommate certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor does Roommate use the information in the ‘Additional Comments’ section to limit or channel access to listings.”

The Court remanded the case for a determination of whether its non-immune publication and distribution of information violates the FHA. In addition, the Court vacated the dismissal of the state law claims so that the district court may reconsider whether to exercise its supplemental jurisdiction in light of the Court’s ruling on the federal claims (state law provides additional protections; e.g., protection against discrimination based on sexual orientation).

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